WPIC 300.33 Aggravating Circumstance—Retaliation Against a Public Official or Officer of the Co...

Use bracketed language as applicable.

For the aggravating circumstance involving retaliation against a public official or officer of the court, use the above instruction, as applicable, to supplement the primary statement of this aggravating circumstance, which appears in WPIC 300.02 (Aggravating Circumstance Procedure—Factors Alleged—Unitary Trial) or WPIC 300.06 (Aggravating Circumstance Procedure—Factors Alleged—Bifurcated Trial or Stand-Alone Sentencing Proceeding).

RCW 9.94A.535(3)(x).

This aggravating circumstance was added to the Sentencing Reform Act in 2005. The accompanying legislative history indicates that the statutory language was designed to codify existing common law aggravating circumstances. Laws of 2005, Chapter 68, § 1 (effective April 15, 2005). The statute expressly limits this aggravating circumstance to retaliation for performance of duties “to the criminal justice system.” The statutory language thus is narrower than the corresponding aggravating circumstance for first degree murder. See RCW 10.95.020(8).

This aggravating circumstance was first recognized in a case in which the victim was a deputy prosecuting attorney who had previously prosecuted the defendant for residential burglary and assault. See State v. Chance, 105 Wn.App. 291, 19 P.3d 490 (2001).

Judges, prosecutors, court reporters, jurors, court clerks, bailiffs, and defense attorneys, have all been characterized as “officers of the court.” See State v. Talley, 134 Wn.2d 176, 186, 949 P.2d 358 (1998) (prosecutor as an officer of the court); State v. Hopson, 113 Wn.2d 273, 281, 778 P.2d 1014 (1989) (bailiff as an officer of the court); State ex rel. Sowers v. Olwell, 64 Wn.2d 828, 834, 394 P.2d 681 (1964) (private attorney who was retained by a suspect as an officer of the court); State v. Griffith, 52 Wn.2d 721, 732, 328 P.2d 897 (1958) (attorney appointed by the court as officer of the court); Wheeler v. S. Birch & Sons Const. Co., 27 Wn.2d 325, 178 P.2d 331 (1947) (court reporters as officers of the court); Hughes v. Crowley, 165 Wash. 580, 585, 5 P.2d 982 (1931) (the clerk as an officer of the court); State v. Evans, 100 Wn.App. 757, 765, 998 P.2d 373 (2000) (the trial judge as officer of the court); State v. Cuzick, 11 Wn.App. 539, 544, 524 P.2d 457 (1974), affirmed, 85 Wn.2d 146, 530 P.2d 288 (1975) (jurors as officers of the court); see also RCW 9A.04.110(13) (definition of “public officer”); RCW 9A.04.110(23) (definition of “public servant”).

A law enforcement officer is not a “public officer” for purposes of this enhancement, State v. Gipson, 191 Wn.App. 780, 364 P.3d 850 (2015). There is a separate enhancement when a law enforcement officer is a victim. See RCW 9.94A.535(3)(v). See Comment to WPIC 300.31 (Aggravating Circumstance—Law Enforcement Victim).

The statutory presumption is that this aggravating circumstance will be presented to the jury during the trial of the alleged crime. RCW 9.94A.537(4).